As
filed with the Securities and Exchange Commission on November 25,
2020
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
S-3
REGISTRATION
STATEMENT
Under
THE
SECURITIES ACT OF 1933
MICROBOT
MEDICAL INC.
(Exact
name of Registrant as specified in its charter)
| Delaware | 94-3078125 | |
|
(State or other jurisdiction of |
(I.R.S. Employer |
|
|
Incorporation or organization) |
Identification No.) |
25
Recreation Park Drive, Unit 108
Hingham,
Massachusetts 02043
(781)
875-3605
(Address,
including zip code, and telephone number, including area code, of
Registrant’s principal executive offices)
Harel
Gadot
Chairman,
President and Chief Executive Officer
25
Recreation Park Drive, Unit 108
Hingham,
MA 02043
(781)
875-3605
(Name,
address, including zip code, and telephone number, including area
code, of agent for service)
Copy to:
|
Marc
Mintz,
One
Boston,
(617) |
Stephen
Ruskin
1425
East
Uniondale,
(516) |
Approximate
date of commencement of proposed sale to the public: From time
to time after the effective date of this registration statement, as
determined by the Registrant.
If
the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check
the following box: [ ]
If
any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box: [X]
If
this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. [ ]
If
this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
[ ]
If
this form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to Rule
462(e) under the Securities Act, check the following box.
[ ]
If
this form is a post-effective amendment to a registration statement
filed pursuant General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the following box.
[ ]
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated filer,” “smaller reporting
company” and “emerging growth company” in Rule 12b-2 of the
Exchange Act.
|
Large Accelerated Filer |
[ ] |
Accelerated Filer |
[ ] |
|
Non-Accelerated Filer |
[X] | Smaller Reporting Company |
[X] |
| Emerging Growth Company |
[ ] |
CALCULATION
OF REGISTRATION FEE
|
Title of Each Class of Securities to be Registered |
Amount Registered |
Proposed
Offering Price Share |
Proposed Maximum Aggregate Offering Price |
Amount
Registration |
||||||||||||
| Common Stock, $0.01 par value |
(2) | (3) | (3) | — | ||||||||||||
| Preferred Stock, $0.01 par value |
(2) | (3) | (3) | — | ||||||||||||
| Warrants | (2) | (3) | (3) | — | ||||||||||||
| Debt Securities |
(2) | (3) | (3) | — | ||||||||||||
| Rights | (2) | (3) | (3) | — | ||||||||||||
| Units | (2) | (3) | (3) | — | ||||||||||||
| Total | $ | 75,000,000 | $ | 8,182.50 | ||||||||||||
| (1) |
Calculated pursuant to Rule 457(o) under the Securities Act of 1933, as amended, based on the proposed maximum aggregate offering price. |
| (2) |
There are being registered hereunder such indeterminate number of shares of common stock and preferred stock, such indeterminate principal amount of debt securities, such indeterminate number of warrants and rights to purchase common stock, preferred stock or debt securities, and such indeterminate number of units, as shall have an aggregate initial offering price not to exceed $75,000,000. If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal amount as shall result in an aggregate initial offering price not to exceed $75,000,000, less the aggregate dollar amount of all securities previously issued hereunder. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. The proposed maximum initial offering price per unit will be determined, from time to time, by the registrant in connection with the issuance by the registrant of the securities registered hereunder. The securities registered also include such indeterminate number of shares of common stock and preferred stock and amount of debt securities as may be issued upon conversion of or exchange for preferred stock or debt securities that provide for conversion or exchange, upon exercise of warrants or rights or pursuant to the anti-dilution provisions of any such securities. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended, the shares being registered hereunder include such indeterminate number of shares of common stock and preferred stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions. |
| (3) |
The proposed maximum aggregate offering price per class of security will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act of 1933, as amended. |
The Registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a)
of the Securities Act of 1933, AS AMENDED, or until THE
registration statement shall become effective on such date as the
SECURITIES AND EXCHANGE Commission, acting pursuant to SAID Section
8(a), may
determine.
The information in this prospectus is not complete and may be
changed. WE MAY NOT SELL These securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities
AND IS NOT soliciting AN OFFER to buy these securities in any
jurisdiction where the offer or sale is not
permitted.
SUBJECT TO COMPLETION, DATED NOVEMBER 25, 2020
PROSPECTUS
$75,000,000
Common
Stock
Preferred
Stock
Warrants
Debt
Securities
Rights
Units
This
prospectus will allow us to issue, from time to time at prices and
on terms to be determined at or prior to the time of the offering,
up to $75,000,000 of any combination of the securities described in
this prospectus, either individually or in units. We may also offer
common stock or preferred stock upon conversion of or exchange for
the debt securities; common stock upon conversion of or exchange
for the preferred stock; or common stock, preferred stock or debt
securities upon the exercise of warrants or rights.
This
prospectus describes the general terms of these securities and the
general manner in which these securities will be offered. We will
provide you with the specific terms of any offering in one or more
supplements to this prospectus. The prospectus supplements will
also describe the specific manner in which these securities will be
offered and may also supplement, update or amend information
contained in this document. You should read this prospectus and any
prospectus supplement, as well as any documents incorporated by
reference into this prospectus or any prospectus supplement,
carefully before you invest.
Our
securities may be sold directly by us to you, through agents
designated from time to time or to or through underwriters or
dealers. For additional information on the methods of sale, you
should refer to the section entitled “Plan of Distribution” in this
prospectus and in the applicable prospectus supplement. If any
underwriters or agents are involved in the sale of our securities
with respect to which this prospectus is being delivered, the names
of such underwriters or agents and any applicable fees, commissions
or discounts and over-allotment options will be set forth in a
prospectus supplement. The price to the public of such securities
and the net proceeds that we expect to receive from such sale will
also be set forth in a prospectus supplement.
Our
common stock is listed on The Nasdaq Capital Market under the
symbol “MBOT.” On November 24, 2020, the last reported sale price
of our common stock on The Nasdaq Capital Market was $7.25 per
share. The applicable prospectus supplement will contain
information, where applicable, as to any other listing, if any, on
The Nasdaq Capital Market or any securities market or other
securities exchange of the securities covered by the prospectus
supplement. Prospective purchasers of our securities are urged to
obtain current information as to the market prices of our
securities, where applicable.
Investing
in our securities involves a high degree of risk. Before deciding
whether to invest in our securities, you should consider carefully
the risks that we have described on page 4 of this prospectus under
the caption “Risk Factors.” We may include specific risk factors in
supplements to this prospectus under the caption “Risk Factors.”
This prospectus may not be used to sell our securities unless
accompanied by a prospectus supplement.
Neither
the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal
offense.
The
date of this prospectus is
,
2020.
TABLE OF CONTENTS
This prospectus is part of a registration statement that we filed
with the Securities and Exchange Commission, or SEC, utilizing a
“shelf” registration process. Under this shelf registration
process, we may offer shares of our common stock or preferred
stock, various series of debt securities and/or warrants or rights
to purchase any of such securities, either individually or in
units, in one or more offerings, with a total value of up to
$75,000,000. This prospectus provides you with a general
description of the securities we may offer. Each time we offer a
type or series of securities under this prospectus, we will provide
a prospectus supplement that will contain specific information
about the terms of that offering.
This
prospectus does not contain all of the information included in the
registration statement. For a more complete understanding of the
offering of the securities, you should refer to the registration
statement, including its exhibits. The prospectus supplement may
also add, update or change information contained or incorporated by
reference in this prospectus. However, no prospectus supplement
will offer a security that is not registered and described in this
prospectus at the time of its effectiveness. This prospectus,
together with the applicable prospectus supplements and the
documents incorporated by reference into this prospectus, includes
all material information relating to the offering of securities
under this prospectus. You should carefully read this prospectus,
the applicable prospectus supplement, the information and documents
incorporated herein by reference and the additional information
under the headings “Where You Can Find More Information” and
“Incorporation of Documents by Reference” before making an
investment decision.
You
should rely only on the information we have provided or
incorporated by reference in this prospectus or any prospectus
supplement. We have not authorized anyone to provide you with
information different from that contained or incorporated by
reference in this prospectus. No dealer, salesperson or other
person is authorized to give any information or to represent
anything not contained or incorporated by reference in this
prospectus. You must not rely on any unauthorized information or
representation. This prospectus is an offer to sell only the
securities offered hereby, but only under circumstances and in
jurisdictions where it is lawful to do so. You should assume that
the information in this prospectus or any prospectus supplement is
accurate only as of the date on the front of the document and that
any information we have incorporated herein by reference is
accurate only as of the date of the document incorporated by
reference, regardless of the time of delivery of this prospectus or
any sale of a security.
We
further note that the representations, warranties and covenants
made by us in any agreement that is filed as an exhibit to any
document that is incorporated by reference in this prospectus were
made solely for the benefit of the parties to such agreement,
including, in some cases, for the purpose of allocating risk among
the parties to such agreements, and should not be deemed to be a
representation, warranty or covenant to you. Moreover, such
representations, warranties or covenants were accurate only as of
the date when made. Accordingly, such representations, warranties
and covenants should not be relied on as accurately representing
the current state of our affairs.
This
prospectus may not be used to consummate sales of our securities
unless it is accompanied by a prospectus supplement. To the extent
there are inconsistencies between any prospectus supplement, this
prospectus and any documents incorporated by reference, the
document with the most recent date will control.
Unless
the context indicates otherwise in this prospectus, the terms
“Microbot,” the “Company,” “we,” “our” or “us” in this prospectus
refer to Microbot Medical Inc. and its wholly-owned
subsidiaries.
PROSPECTUS SUMMARY
This
summary highlights selected information about our Company, the
offering of our securities under this prospectus and information
appearing elsewhere in this prospectus and in the documents we
incorporate by reference. This summary is not complete and does not
contain all the information that you should consider before
investing in our securities. You should read this entire prospectus
carefully, including “Risk Factors” contained in this prospectus
beginning on page 4, and the more detailed financial statements,
notes to the consolidated financial statements and other
information incorporated by reference from our filings with the SEC
or included in any applicable prospectus supplement. Investing in
our securities involves risks. Therefore, carefully consider the
risk factors set forth in any prospectus supplement and in our most
recent annual and quarterly filings with the SEC, as well as other
information in this prospectus and any prospectus supplements and
the documents incorporated by reference herein or therein, before
purchasing our securities. Each of the risk factors could adversely
affect our business, operating results and financial condition, as
well as adversely affect the value of an investment in our
securities.
Overview
Microbot
is a pre-clinical medical device company specializing in the
research, design and development of next generation robotic
endoluminal surgery devices targeting the minimally invasive
surgery space. Microbot is primarily focused on leveraging its
micro-robotic technologies with the goal of redefining surgical
robotics while improving surgical outcomes for patients.
Microbot’s
current technological platforms, ViRobTM,
TipCATTM and Liberty™ (including certain CardioSert
assets), are comprised of proprietary innovative technologies.
Using the ViRob platform, Microbot is currently developing the Self
Cleaning Shunt, or SCSTM, for the treatment of
hydrocephalus and Normal Pressure Hydrocephalus, or NPH. Utilizing
the Liberty and CardioSert platforms, Microbot is developing the
first ever fully disposable robot for various endovascular
interventional procedures. In addition, the Company is focused on
the development of a Multi Generation Pipeline Portfolio utilizing
all of its proprietary technologies.
Microbot
has a patent portfolio of 40 issued/allowed patents and 23 patent
applications pending worldwide.
Technological
Platforms
ViRob
The
ViRob is an autonomous crawling micro-robot which can be controlled
remotely or within the body. Its miniature dimensions are expected
to allow it to navigate and crawl in different natural spaces
within the human body, including blood vessels, the digestive tract
and the respiratory system as well as artificial spaces such as
shunts, catheters, ports, etc. Its unique structure is expected to
give it the ability to move in tight spaces and curved passages as
well as the ability to remain within the human body for prolonged
time. The SCS product was developed using the ViRob
technology.
TipCAT
The
TipCAT is a disposable self-propelled locomotive device that is
specially designed to advance in tubular anatomies. The TipCAT is a
mechanism comprising a series of interconnected balloons at the
device’s tip that provides the TipCAT with its forward locomotion
capability. The device can self-propel within natural tubular
lumens such as the blood vessels, respiratory and the urinary and
GI tracts. A single channel of air/fluid supply sequentially
inflates and deflates a series of balloons creating an inchworm
like forward motion. The TipCAT maintains a standard working
channel for treatments. Unlike standard access devices such as
guidewires, catheters for vascular access and endoscopes, the
TipCAT does not need to be pushed into the patient’s lumen using
external pressure; rather, it will gently advance itself through
the organ’s anatomy. As a result, the TipCAT is designed to be able
to reach every part of the lumen under examination regardless of
the topography, be less operator dependent, and greatly reduce the
likelihood of damage to lumen structure. The TipCAT thus offers
functionality features equivalent to modern tubular access devices,
along with advantages associated with its physiologically adapted
self-propelling mechanism, flexibility, and design.
CardioSert
On
May 25, 2018, Microbot acquired a patent-protected technology from
CardioSert Ltd., a privately-held medical device company based in
Israel that was part of a technological incubator supported by the
Israel Innovation Authorities. The CardioSert technology
contemplates a combination of a guidewire and microcatheter,
technologies that are broadly used for surgery within a tubular
organ or structure such as a blood vessel or duct. The CardioSert
technology features a unique guidewire delivery system with
steering and stiffness control capabilities which when developed is
expected to give the physician the ability to control the tip
curvature, to adjust tip load to varying degrees of stiffness in a
gradually continuous manner. The CardioSert technology was
originally developed to support interventional cardiologists in
crossing chronic total occlusions (CTO) during percutaneous
coronary intervention (PCI) procedures and has the potential to be
used in other spaces and applications, such as peripheral
intervention, and neurosurgery.
Liberty
On
January 13, 2020, Microbot unveiled what it believes is the world’s
first fully disposable robotic system for use in Endovascular
Interventional procedures, such as cardiovascular, peripheral and
neurovascular. The Liberty robotic system features a unique compact
design with the capability to be operated remotely, reduce
radiation exposure and physical strain to the physician, as well as
the potential to eliminate the use of multiple consumables through
its “One & Done” capabilities, based in part on the CardioSert
platform.
Liberty
is designed to maneuver guidewires and over-the-wire devices (such
as microcatheters) within the body’s vasculature. It eliminates the
need for extensive capital equipment requiring dedicated Cath-lab
rooms as well as dedicated staff. In addition, it is being designed
to streamline Cath-lab procedures with our proprietary “One &
Done” tool that combines guidewire and microcatheter into a single
device. With control over tip curvature and stiffness for
maneuverability and access – and without the need for constant tool
exchanges – the “One & Done” feature of Liberty may drastically
reduce procedure time and costs while enhancing the operator
experience.
On
August 17, 2020, Microbot announced the successful conclusion of
its feasibility animal study using the Liberty robotic system. The
study met all of its end points with no intraoperative adverse
events, which supports Microbot’s objectives to allow physicians to
conduct a catheter-based procedure from outside the catheterization
laboratory (cath-lab), avoiding radiation exposure, physical strain
and the risk of cross contamination. The study was performed by two
leading physicians in the neuro vascular and peripheral vascular
intervention spaces, and the results demonstrated robust navigation
capabilities, intuitive usability and accurate deployment of
embolic agents, most of which was conducted remotely from the
cath-lab’s control room.
We
are continuously exploring and evaluating additional innovative
guidewire/microcatheter technologies to be integrated and combined
with the Liberty robotic platform.
Additional
Information
For
additional information related to our business and operations,
please refer to the reports incorporated herein by reference,
including our Annual Report on Form 10-K for the year ended
December 31, 2019 as described under the caption “Incorporation of
Documents by Reference” on page 23 of this prospectus.
Our
Corporate Information
Our
Company was incorporated on August 2, 1988 in the State of Delaware
under the name Cellular Transplants, Inc. The original Certificate
of Incorporation was restated on February 14, 1992 to change the
name of the Company to CytoTheraputics, Inc. On May 24, 2000, the
Certificate of Incorporation as restated was further amended to
change the name of the Company to StemCells, Inc. On November 28,
2016, C&RD Israel Ltd., a wholly-owned subsidiary of the
Company, completed its merger with and into Microbot Medical Ltd.,
an Israeli corporation, with Microbot Israel Ltd. surviving as a
wholly-owned subsidiary of the Company, or the Merger. Prior to the
Merger, the Company was a biopharmaceutical company that operated
in one segment: the research, development, and commercialization of
stem cell therapeutics and related technologies. Immediately
following the closing of the Merger, the business of Microbot
Medical Ltd. became our sole focus. In connection with the Merger,
we also changed our name from StemCells, Inc. to Microbot Medical
Inc. On November 29, 2016, the stock of the Company began trading
on the Nasdaq Capital Market under the symbol “MBOT”.
Our
principal executive offices are located at 25 Recreation Park
Drive, Unit 108, Hingham, Massachusetts 02043. Microbot also has an
executive office at 6 Hayozma Street, Yoqneam, P.O.B. 242, Israel
2069204. Our telephone number is (781) 875-3605. We maintain an
Internet website at www.microbotmedical.com. The information
contained on, connected to or that can be accessed via our website
is not part of this prospectus. We have included our website
address in this prospectus as an inactive textual reference only
and not as an active hyperlink.
Our
Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q,
Current Reports on Form 8-K and all amendments to those reports
filed or furnished pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended, or the Exchange Act,
are available free of charge through the investor relations page of
our internet website as soon as reasonably practicable after we
electronically file such material with, or furnish it to, the
SEC.
Offerings
Under This Prospectus
Under
this prospectus, we may offer shares of our common stock or
preferred stock, various series of debt securities and/or warrants
or rights to purchase any such securities, either individually or
in units, with a total value of up to $75,000,000, from time to
time at prices and on terms to be determined by market conditions
at the time of the offering. This prospectus provides you with a
general description of the securities we may offer. Each time we
offer a type or series of securities under this prospectus, we will
provide a prospectus supplement that will describe the specific
amounts, prices and other important terms of the securities,
including, to the extent applicable:
| ● | designation or classification; |
|
| ● | aggregate principal amount or aggregate offering price; |
|
| ● | maturity, if applicable; |
|
| ● | rates and times of payment of interest or dividends, if any; |
|
| ● | redemption or conversion terms, if any; |
|
| ● | voting or other rights, if any; and |
|
| ● | conversion or exercise prices, if any. |
The
prospectus supplement also may add, update or change information
contained in this prospectus or in documents we have incorporated
by reference into this prospectus. However, no prospectus
supplement will fundamentally change the terms that are set forth
in this prospectus or offer a security that is not registered and
described in this prospectus at the time of its
effectiveness.
We
may sell the securities directly to investors or to or through
agents, underwriters or dealers. We, and our agents or
underwriters, reserve the right to accept or reject all or part of
any proposed purchase of securities. If we offer securities through
agents or underwriters, we will include in the applicable
prospectus supplement:
| ● | the names of those agents or underwriters; |
|
| ● | applicable fees, discounts and commissions to be paid to them; |
|
| ● | details regarding over-allotment options, if any; and |
|
| ● | the net proceeds to us. |
THIS
PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF ANY SECURITIES
UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
RISK FACTORS
Investing
in our securities involves significant risk. The prospectus
supplement applicable to each offering of our securities may
contain a discussion of the risks applicable to an investment in
Microbot. Prior to making a decision about investing in our
securities, you should consider the “Risk Factors” included and
incorporated by reference in this prospectus and any applicable
prospectus supplement, including the risk factors incorporated by
reference from our most recent Annual Report on Form 10-K, as
updated by our Quarterly Reports on Form 10-Q and our other filings
with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act filed after such annual report. The risks and
uncertainties we describe are not the only ones facing us.
Additional risks not presently known to us, or that we currently
deem immaterial, may also impair our business operations. If any of
these risks were to occur, our business, financial condition, or
results of operations would likely suffer. In that event, the
trading price of our common stock could decline, and you could lose
all or part of your investment.
SPECIAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This
prospectus and the documents incorporated by reference in this
prospectus include forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, or the
Securities Act, and Section 21E of the Exchange Act that relate to
future events or our future operations or financial performance and
involve known and unknown risks, uncertainties and other factors
that may cause our actual results, levels of activity, performance
or achievements to differ materially from any future results,
levels of activity, performance or achievements expressed or
implied by these forward-looking statements. In some cases, you can
identify forward-looking statements by terminology such as “may”,
“should”, “intends”, “expects”, “plans”, “targets”, “anticipates”,
“believes”, “estimates”, “will”, “would”, “predicts”, “potential”,
or “continue” or the negative of these terms or other comparable
terminology. These statements are only predictions and involve
known and unknown risks, uncertainties and other factors. The
Private Securities Litigation Reform Act of 1995 provides a “safe
harbor” for such forward-looking statements. In order to comply
with the terms of the safe harbor, we note that a variety of
factors could cause actual results and experience to differ
materially from the anticipated results or other expectations
expressed in the forward-looking statements.
Such
statements include, without limitation, all statements as to
expectation or belief and statements as to our future results of
operations; the progress of our research, product development and
clinical programs; the need for, and timing of, additional capital
and capital expenditures; partnering prospects; costs of
manufacturing products; the protection of, and the need for,
additional intellectual property rights; effects of regulations;
the need for additional facilities; and potential market
opportunities. Our actual results may vary materially from those
contained in such forward-looking statements because of risks to
which we are subject, including the fact that additional trials
will be required to confirm the safety and demonstrate the efficacy
of our planned products; uncertainty as to whether the U.S. Food
and Drug Administration, or the FDA, or other regulatory
authorities will clear our proposed products for commercialization
and sale; the risk that our planned clinical trials or studies
could be substantially delayed beyond their expected dates or cause
us to incur substantial unanticipated costs; uncertainties in our
ability to obtain the capital resources needed to continue our
current research and development operations and to conduct the
research, preclinical development and clinical trials necessary for
regulatory approvals; the uncertainty regarding the outcome of our
clinical trials or studies we may conduct in the future; the
uncertainty regarding the validity and enforceability of the
patents underlying our proposed products; the uncertainty as to
whether the Company’s preclinical studies will be replicated in
humans; the uncertainty whether any of our proposed products will
prove clinically safe and effective; the uncertainty of whether we
will achieve significant revenue from product sales or become
profitable; obsolescence of our technologies; competition from
third parties; intellectual property rights of third parties;
litigation risks; legal and regulatory developments in Israel; and
other risks to which we are subject.
We
have based these forward-looking statements on our current
expectations and projections about future events. We believe that
the assumptions and expectations reflected in such forward-looking
statements are reasonable, based on information available to us on
the date hereof, but we cannot assure you that these assumptions
and expectations will prove to have been correct or that we will
take any action that we may presently be planning. These
forward-looking statements are inherently subject to known and
unknown risks and uncertainties. We have included important
cautionary statements in this prospectus, in the documents
incorporated by reference in this prospectus, and in the sections
in our periodic reports, including our most recent Annual Report on
Form 10-K, entitled “Business,” “Risk Factors,” and “Management’s
Discussion and Analysis of Financial Condition and Results of
Operations,” as supplemented by our subsequent Quarterly Reports on
Form 10-Q or our Current Reports on Form 8-K, discussing some of
the factors that we believe could cause actual results or events to
differ materially from the forward-looking statements that we are
making including, but are not limited to, research and product
development uncertainties, regulatory policies and approval
requirements, competition from other similar businesses, market and
general economic factors.
In
light of these assumptions, risks and uncertainties, the results
and events discussed in the forward-looking statements contained in
this prospectus or in any document incorporated herein by reference
might not occur. Investors are cautioned not to place undue
reliance on the forward-looking statements, which speak only as of
the date of this prospectus or the date of the document
incorporated by reference in this prospectus. We are not under any
obligation, and we expressly disclaim any obligation, to update or
alter any forward-looking statements, whether as a result of new
information, future events or otherwise. All subsequent
forward-looking statements attributable to us or to any person
acting on our behalf are expressly qualified in their entirety by
the cautionary statements contained or referred to in this
section.
USE OF PROCEEDS
We
cannot assure you that we will receive any proceeds in connection
with securities which may be offered pursuant to this prospectus.
Unless otherwise indicated in the applicable prospectus supplement,
we intend to use any net proceeds from the sale of securities under
this prospectus for our operations, our further development and
commercialization of our product candidates, other general
corporate purposes, which may include, but are not limited to,
working capital, intellectual property protection and enforcement,
capital expenditures, repayment of indebtedness and collaborations,
and the costs of acquiring, licensing or investing in new and
existing businesses, product candidates and technologies. We have
not determined the amounts we plan to spend on any of the areas
listed above or the timing of these expenditures. As a result, our
management will have broad discretion to allocate the net proceeds,
if any, we receive in connection with securities offered pursuant
to this prospectus for any purpose. Pending application of the net
proceeds as described above, we may initially invest the net
proceeds in short-term, investment-grade or interest-bearing
securities in accordance with our cash-management policies.
Additional information on the use of proceeds from the sale of
securities offered by this prospectus may be set forth in the
prospectus supplement relating to that offering.
PLAN OF DISTRIBUTION
We
may offer securities under this prospectus from time to time
pursuant to public offerings through one or more placement agents
or underwriters, negotiated transactions, block trades or a
combination of these methods. We may sell the securities (1)
through underwriters or dealers, (2) through agents or (3) directly
to one or more purchasers, or through a combination of such
methods. We may distribute the securities from time to time in one
or more transactions at:
| ● | a fixed price or prices, which may be changed from time to time; |
|
| ● | market prices prevailing at the time of sale; |
|
| ● | prices related to the prevailing market prices; or |
|
| ● | negotiated prices. |
We
may directly solicit offers to purchase the securities being
offered by this prospectus. We may also designate agents to solicit
offers to purchase the securities from time to time, and may enter
into arrangements for “at the market,” equity line or similar
transactions. We will name in a prospectus supplement any
underwriter or agent involved in the offer or sale of the
securities.
If we
utilize a dealer in the sale of the securities being offered by
this prospectus, we will sell the securities to the dealer, as
principal. The dealer may then resell the securities to the public
at varying prices to be determined by the dealer at the time of
resale.
If we
utilize an underwriter in the sale of the securities being offered
by this prospectus, we will execute an underwriting agreement with
the underwriter at the time of sale, and we will provide the name
of any underwriter in the prospectus supplement which the
underwriter will use to make resales of the securities to the
public. In connection with the sale of the securities, we, or the
purchasers of the securities for whom the underwriter may act as
agent, may compensate the underwriter in the form of underwriting
discounts or commissions. The underwriter may sell the securities
to or through dealers, and the underwriter may compensate those
dealers in the form of discounts, concessions or
commissions.
With
respect to underwritten public offerings, negotiated transactions
and block trades, we will provide in the applicable prospectus
supplement information regarding any compensation we pay to
underwriters, dealers or agents in connection with the offering of
the securities, and any discounts, concessions or commissions
allowed by underwriters to participating dealers. Underwriters,
dealers and agents participating in the distribution of the
securities may be deemed to be underwriters within the meaning of
the Securities Act, and any discounts and commissions received by
them and any profit realized by them on resale of the securities
may be deemed to be underwriting discounts and commissions. We may
enter into agreements to indemnify underwriters, dealers and agents
against civil liabilities, including liabilities under the
Securities Act, or to contribute to payments they may be required
to make in respect thereof.
If so
indicated in the applicable prospectus supplement, we will
authorize underwriters, dealers or other persons acting as our
agents to solicit offers by certain institutions to purchase
securities from us pursuant to delayed delivery contracts providing
for payment and delivery on the date stated in each applicable
prospectus supplement. Each contract will be for an amount not less
than, and the aggregate amount of securities sold pursuant to such
contracts shall not be less nor more than, the respective amounts
stated in each applicable prospectus supplement. Institutions with
whom the contracts, when authorized, may be made include commercial
and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and other
institutions, but shall in all cases be subject to our approval.
Delayed delivery contracts will not be subject to any conditions
except that:
| ● |
the purchase by an institution of the securities covered under that contract shall not at the time of delivery be prohibited under the laws of the jurisdiction to which that institution is subject; and |
|
| ● |
if the securities are also being sold to underwriters acting as principals for their own account, the underwriters shall have purchased such securities not sold for delayed delivery. The underwriters and other persons acting as our agents will not have any responsibility in respect of the validity or performance of delayed delivery contracts. |
One
or more firms, referred to as “remarketing firms,” may also offer
or sell the securities, if a prospectus supplement so indicates, in
connection with a remarketing arrangement upon their purchase.
Remarketing firms will act as principals for their own accounts or
as our agents. These remarketing firms will offer or sell the
securities in accordance with the terms of the securities. Each
prospectus supplement will identify and describe any remarketing
firm and the terms of its agreement, if any, with us and will
describe the remarketing firm’s compensation. Remarketing firms may
be deemed to be underwriters in connection with the securities they
remarket. Remarketing firms may be entitled under agreements that
may be entered into with us to indemnification by us against
certain civil liabilities, including liabilities under the
Securities Act, and may be customers of, engage in transactions
with or perform services for us in the ordinary course of
business.
Certain
underwriters may use this prospectus and any accompanying
prospectus supplement for offers and sales related to market-making
transactions in the securities. These underwriters may act as
principal or agent in these transactions, and the sales will be
made at prices related to prevailing market prices at the time of
sale. Any underwriters involved in the sale of the securities may
qualify as “underwriters” within the meaning of Section 2(a)(11) of
the Securities Act. In addition, the underwriters’ commissions,
discounts or concessions may qualify as underwriters’ compensation
under the Securities Act and the rules of the Financial Industry
Regulatory Authority, Inc., or FINRA.
Shares
of our common stock sold pursuant to the registration statement of
which this prospectus is a part will be authorized for listing and
trading on The Nasdaq Capital Market. The applicable prospectus
supplement will contain information, where applicable, as to any
other listing, if any, on The Nasdaq Capital Market or any
securities market or other securities exchange of the securities
covered by the prospectus supplement. Underwriters may make a
market in our common stock, but will not be obligated to do so and
may discontinue any market making at any time without notice. We
can make no assurance as to the liquidity of or the existence,
development or maintenance of trading markets for any of the
securities.
In
order to facilitate the offering of the securities, certain persons
participating in the offering may engage in transactions that
stabilize, maintain or otherwise affect the price of the
securities. This may include over-allotments or short sales of the
securities, which involve the sale by persons participating in the
offering of more securities than we sold to them. In these
circumstances, these persons would cover such over-allotments or
short positions by making purchases in the open market or by
exercising their over-allotment option. In addition, these persons
may stabilize or maintain the price of the securities by bidding
for or purchasing the applicable security in the open market or by
imposing penalty bids, whereby selling concessions allowed to
dealers participating in the offering may be reclaimed if the
securities sold by them are repurchased in connection with
stabilization transactions. The effect of these transactions may be
to stabilize or maintain the market price of the securities at a
level above that which might otherwise prevail in the open market.
These transactions may be discontinued at any time.
The
underwriters, dealers and agents may engage in other transactions
with us, or perform other services for us, in the ordinary course
of their business.
.
DESCRIPTION OF COMMON
STOCK
We
are authorized to issue 60,000,000 shares of common stock, par
value $0.01 per share. As of September 30, 2020 we had 7,108,133
shares of common stock issued and outstanding and approximately 139
common stockholders of record. The following summary of certain
provisions of our common stock does not purport to be complete. You
should refer to our certificate of incorporation and our bylaws,
copies of which are on file
with the SEC as exhibits to previous SEC filings.
Please refer to “Where You
Can Find More Information” below for directions on obtaining these
documents. The summary below is also qualified by provisions
of applicable law.
General
Holders
of common stock are entitled to one vote for each share held on all
matters submitted to a vote of stockholders and do not have
cumulative voting rights. Holders of common stock are entitled to
receive proportionately any dividends as may be declared by our
board of directors, out of funds that we may legally use to pay
dividends, subject to any preferential dividend rights of any
outstanding series of preferred stock or series of preferred stock
that we may designate and issue in the future. All shares of common
stock outstanding as of the date of this prospectus and, upon
issuance and sale, all shares of common stock that we may offer
pursuant to this prospectus, will be fully paid and
nonassessable.
In
the event of our liquidation or dissolution, the holders of common
stock are entitled to receive proportionately our net assets
available for distribution to stockholders after the payment of all
debts and other liabilities and subject to the prior rights of any
outstanding preferred stock. Holders of common stock have no
preemptive, subscription, redemption or conversion rights. There
are no redemption or sinking fund provisions applicable to the
common stock.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Computershare
Trust Company, N.A.
Nasdaq
Capital Market
Our
common stock is listed for quotation on the Nasdaq Capital Market
under the symbol “MBOT.”
DESCRIPTION OF PREFERRED
STOCK
We
have authority to issue 1,000,000 shares of preferred stock, par
value $0.01 per share. As of the date of this prospectus, no shares
of our preferred stock were outstanding or designated.
The
following summary of certain provisions of our preferred stock does
not purport to be complete. You should refer to our certificate of
incorporation and by-laws, as amended to date, copies of which are on file with the SEC
as exhibits to previous SEC filings. Please refer to “Where You Can
Find More Information” below for directions on obtaining these
documents. The summary below is also qualified by provisions
of applicable law.
Our
board of directors is authorized, without stockholder approval,
from time to time, to issue shares of preferred stock in series and
may, at the time of issuance, subject to Delaware law and our
certificate of incorporation and by-laws, determine the rights,
preferences and limitations of each series, including voting
rights, dividend rights and redemption and liquidation preferences.
Satisfaction of any dividend preferences of outstanding shares of
preferred stock would reduce the amount of funds available for the
payment of dividends on shares of our common stock. Holders of
shares of preferred stock may be entitled to receive a preference
payment in the event of any liquidation, dissolution or winding-up
of our company before any payment is made to the holders of shares
of our common stock. In some circumstances, the issuance of shares
of preferred stock may render more difficult or tend to discourage
a merger, tender offer or proxy contest, the assumption of control
by a holder of a large block of our securities or the removal of
incumbent management. Upon the affirmative vote of our board of
directors, without stockholder approval, we may issue shares of
preferred stock with voting and conversion rights which could
adversely affect the holders of shares of our common
stock.
If we
offer a specific series of preferred stock under this prospectus,
we will describe the terms of the preferred stock in the prospectus
supplement for such offering and will file a copy of the
certificate establishing the terms of the preferred stock with the
SEC. To the extent required, this description will
include:
| ● |
the title and stated value; |
|
| ● |
the number of shares offered, the liquidation preference per share and the purchase price; |
|
| ● |
the dividend rate(s), period(s) and/or payment date(s), or method(s) of calculation for such dividends; |
|
| ● |
whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; |
|
| ● |
the procedures for any auction and remarketing, if any; |
|
| ● |
the provisions for a sinking fund, if any; |
|
| ● |
the provisions for redemption, if applicable; |
|
| ● |
any listing of the preferred stock on any securities exchange or market; |
|
| ● |
whether the preferred stock will be convertible into our common stock, and, if applicable, the conversion price (or how it will be calculated) and conversion period; |
|
| ● |
whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price (or how it will be calculated) and exchange period; |
|
| ● |
voting rights, if any, of the preferred stock; |
|
| ● |
a discussion of any material and/or special U.S. federal income tax considerations applicable to the preferred stock; |
|
| ● |
the relative ranking and preferences of the preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up of the affairs of the Company; and |
|
| ● |
any material limitations on issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up of the Company. |
The
preferred stock offered by this prospectus will, when issued, be
fully paid and nonassessable and will not have, or be subject to,
any preemptive or similar rights.
Transfer
Agent and Registrar
The
transfer agent and registrar for any series or class of preferred
stock will be set forth in the applicable prospectus
supplement.
DESCRIPTION OF WARRANTS
We
may issue warrants to purchase shares of our common stock,
preferred stock and/or debt securities in one or more series
together with other securities or separately, as described in the
applicable prospectus supplement. Below is a description of certain
general terms and provisions of the warrants that we may offer.
Particular terms of the warrants will be described in the warrant
agreements and the prospectus supplement to the
warrants.
The
applicable prospectus supplement will contain, where applicable,
the following terms of, and other information relating to, the
warrants:
| ● |
the specific designation and aggregate number of, and the price at which we will issue, the warrants; |
|
| ● |
the currency or currency units in which the offering price, if any, and the exercise price are payable; |
|
| ● |
the designation, amount and terms of the securities purchasable upon exercise of the warrants; |
|
| ● |
if applicable, the exercise price for shares of our common stock and the number of shares of common stock to be received upon exercise of the warrants; |
|
| ● |
if applicable, the exercise price for shares of our preferred stock, the number of shares of preferred stock to be received upon exercise, and a description of that series of our preferred stock; |
|
| ● |
if applicable, the exercise price for our debt securities, the amount of debt securities to be received upon exercise, and a description of that series of debt securities; |
|
| ● |
the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants; |
|
| ● |
whether the warrants will be issued in fully registered form or bearer form, in definitive or global form or in any combination of these forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security included in that unit; |
|
| ● |
any applicable material U.S. federal income tax consequences; |
|
| ● |
the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars or other agents; |
|
| ● |
the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange; |
|
| ● |
if applicable, the date from and after which the warrants and the common stock, preferred stock and/or debt securities will be separately transferable; |
|
| ● |
if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
|
| ● |
information with respect to book-entry procedures, if any; |
|
| ● |
the anti-dilution provisions of the warrants, if any; |
|
| ● |
any redemption or call provisions; |
|
| ● |
whether the warrants are to be sold separately or with other securities as parts of units; and |
|
| ● |
any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
Outstanding
Warrants
As of
September 30, 2020, we had outstanding:
| ● |
warrants to purchase 183 shares of our common stock at an exercise price of $2,754.00 per share, which are exercisable through April 9, 2023; |
|
| ● |
warrants to purchase 2,770 shares of our common stock at an exercise price of $40.50 per share, which are exercisable through March 14, 2022; |
|
| ● |
warrants to purchase 8,082 shares of our common stock at an exercise price of $8.13 per share, which are exercisable through July 14, 2022; |
|
| ● |
warrants to purchase 29,500 shares of our common stock at an exercise price of $12.50 per share, which are exercisable through July 15, 2022; |
|
| ● |
warrants to purchase 45,643 shares of our common stock at an exercise price of $13.13 per share, which are exercisable through June 25, 2023; |
|
| ● |
warrants to purchase 47,619 shares of our common stock at an exercise price of $13.13 per share, which are exercisable through June 27, 2023; and |
|
| ● |
warrants to purchase 45,045 shares of our common stock at an exercise price of $13.88 per share, which are exercisable through June 30, 2023. |
Transfer
Agent and Registrar
The
transfer agent and registrar for any warrants will be set forth in
the applicable prospectus supplement.
DESCRIPTION OF DEBT
SECURITIES
The
following description, together with the additional information we
include in any applicable prospectus supplements, summarizes the
material terms and provisions of the debt securities that we may
offer under this prospectus. While the terms we have summarized
below will apply generally to any future debt securities we may
offer pursuant to this prospectus, we will describe the particular
terms of any debt securities that we may offer in more detail in
the applicable prospectus supplement. If we so indicate in a
prospectus supplement, the terms of any debt securities offered
under such prospectus supplement may differ from the terms we
describe below, and to the extent the terms set forth in a
prospectus supplement differ from the terms described below, the
terms set forth in the prospectus supplement shall
control.
We
may sell from time to time, in one or more offerings under this
prospectus, debt securities, which may be senior or subordinated.
We will issue any such senior debt securities under a senior
indenture that we will enter into with a trustee to be named in the
senior indenture. We will issue any such subordinated debt
securities under a subordinated indenture, which we will enter into
with a trustee to be named in the subordinated indenture. We have
filed forms of these documents as exhibits to the registration
statement, of which this prospectus is a part. We use the term
“indentures” to refer to either the senior indenture or the
subordinated indenture, as applicable. The indentures will be
qualified under the Trust Indenture Act of 1939, or the Trust
Indenture Act, as in effect on the date of the indenture. We use
the term “debenture trustee” to refer to either the trustee under
the senior indenture or the trustee under the subordinated
indenture, as applicable.
The
following summaries of material provisions of the senior debt
securities, the subordinated debt securities and the indentures are
subject to, and qualified in their entirety by reference to, all
the provisions of the indenture applicable to a particular series
of debt securities.
General
Each
indenture provides that debt securities may be issued from time to
time in one or more series and may be denominated and payable in
foreign currencies or units based on or relating to foreign
currencies. Neither the senior indenture nor any subordinated
indenture limits the amount of debt securities that may be issued
thereunder, and each indenture provides that the specific terms of
any series of debt securities shall be set forth in, or determined
pursuant to, an authorizing resolution and/or a supplemental
indenture, if any, relating to such series.
We
will describe in each prospectus supplement the following terms
relating to a series of debt securities:
| ● |
the title or designation; |
|
| ● |
the aggregate principal amount and any limit on the amount that may be issued; |
|
| ● |
the currency or units based on or relating to currencies in which debt securities of such series are denominated and the currency or units in which principal or interest or both will or may be payable; |
|
| ● |
whether we will issue the series of debt securities in global form, the terms of any global securities and who the depositary will be; |
|
| ● |
the maturity date and the date or dates on which principal will be payable; |
|
| ● |
the interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the date or dates interest will be payable and the record dates for interest payment dates or the method for determining such dates; |
|
| ● |
whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
|
| ● |
the terms of the subordination of any series of subordinated debt; |
|
| ● |
the place or places where payments will be payable; |
| ● |
our right, if any, to defer payment of interest and the maximum length of any such deferral period; |
|
| ● |
the date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any optional redemption provisions; |
|
| ● |
the date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities; |
|
| ● |
whether the indenture will restrict our ability to pay dividends, or will require us to maintain any asset ratios or reserves; |
|
| ● |
whether we will be restricted from incurring any additional indebtedness; |
|
| ● |
a discussion on any material or special U.S. federal income tax considerations applicable to a series of debt securities; |
|
| ● |
the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof; and |
|
| ● |
any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities. |
We
may issue debt securities that provide for an amount less than
their stated principal amount to be due and payable upon
declaration of acceleration of their maturity pursuant to the terms
of the indenture. We will provide you with information on the
federal income tax considerations and other special considerations
applicable to any of these debt securities in the applicable
prospectus supplement.
Conversion
or Exchange Rights
We
will set forth in the prospectus supplement the terms, if any, on
which a series of debt securities may be convertible into or
exchangeable for our common stock or our other securities. We will
include provisions as to whether conversion or exchange is
mandatory, at the option of the holder or at our option. We may
include provisions pursuant to which the number of shares of our
common stock or our other securities that the holders of the series
of debt securities receive would be subject to
adjustment.
Consolidation,
Merger or Sale; No Protection in Event of a Change of Control or
Highly Leveraged Transaction
The
indentures do not contain any covenant that restricts our ability
to merge or consolidate, or sell, convey, transfer or otherwise
dispose of all or substantially all of our assets. However, any
successor to or acquirer of such assets must assume all of our
obligations under the indentures or the debt securities, as
appropriate.
Unless
we state otherwise in the applicable prospectus supplement, the
debt securities will not contain any provisions that may afford
holders of the debt securities protection in the event we have a
change of control or in the event of a highly leveraged transaction
(whether or not such transaction results in a change of control),
which could adversely affect holders of debt securities.
Events
of Default Under the Indenture
The
following are events of default under the indentures with respect
to any series of debt securities that we may issue:
| ● |
if we fail to pay interest when due and our failure continues for 90 days and the time for payment has not been extended or deferred; |
|
| ● |
if we fail to pay the principal, or premium, if any, when due and the time for payment has not been extended or delayed; |
| ● |
if we fail to observe or perform any other covenant set forth in the debt securities of such series or the applicable indentures, other than a covenant specifically relating to and for the benefit of holders of another series of debt securities, and our failure continues for 90 days after we receive written notice from the debenture trustee or holders of not less than a majority in aggregate principal amount of the outstanding debt securities of the applicable series; and |
|
| ● |
if specified events of bankruptcy, insolvency or reorganization occur as to us. |
No
event of default with respect to a particular series of debt
securities (except as to certain events of bankruptcy, insolvency
or reorganization) necessarily constitutes an event of default with
respect to any other series of debt securities. The occurrence of
an event of default may constitute an event of default under any
bank credit agreements we may have in existence from time to time.
In addition, the occurrence of certain events of default or
acceleration under the indenture may constitute an event of default
under certain of our other indebtedness outstanding from time to
time.
If an
event of default with respect to debt securities of any series at
the time outstanding occurs and is continuing, then the trustee or
the holders of not less than a majority in principal amount of the
outstanding debt securities of that series may, by a notice in
writing to us (and to the debenture trustee if given by the
holders), declare to be due and payable immediately the principal
(or, if the debt securities of that series are discount securities,
that portion of the principal amount as may be specified in the
terms of that series) of and premium and accrued and unpaid
interest, if any, on all debt securities of that series. Before a
judgment or decree for payment of the money due has been obtained
with respect to debt securities of any series, the holders of a
majority in principal amount of the outstanding debt securities of
that series (or, at a meeting of holders of such series at which a
quorum is present, the holders of a majority in principal amount of
the debt securities of such series represented at such meeting) may
rescind and annul the acceleration if all events of default, other
than the non-payment of accelerated principal, premium, if any, and
interest, if any, with respect to debt securities of that series,
have been cured or waived as provided in the applicable indenture
(including payments or deposits in respect of principal, premium or
interest that had become due other than as a result of such
acceleration). We refer you to the prospectus supplement relating
to any series of debt securities that are discount securities for
the particular provisions relating to acceleration of a portion of
the principal amount of such discount securities upon the
occurrence of an event of default.
Subject
to the terms of the indentures, if an event of default under an
indenture shall occur and be continuing, the debenture trustee will
be under no obligation to exercise any of its rights or powers
under such indenture at the request or direction of any of the
holders of the applicable series of debt securities, unless such
holders have offered the debenture trustee reasonable indemnity.
The holders of a majority in principal amount of the outstanding
debt securities of any series will have the right to direct the
time, method and place of conducting any proceeding for any remedy
available to the debenture trustee, or exercising any trust or
power conferred on the debenture trustee, with respect to the debt
securities of that series, provided that:
| ● |
the direction so given by the holder is not in conflict with any law or the applicable indenture; and |
|
| ● |
subject to its duties under the Trust Indenture Act, the debenture trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding. |
A
holder of the debt securities of any series will only have the
right to institute a proceeding under the indentures or to appoint
a receiver or trustee, or to seek other remedies if:
| ● |
the holder previously has given written notice to the debenture trustee of a continuing event of default with respect to that series; |
|
| ● |
the holders of at least a majority in aggregate principal amount of the outstanding debt securities of that series have made written request, and such holders have offered reasonable indemnity to the debenture trustee to institute the proceeding as trustee; and |
|
| ● |
the debenture trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series (or at a meeting of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities of such series represented at such meeting) other conflicting directions within 60 days after the notice, request and offer. |
These
limitations do not apply to a suit instituted by a holder of debt
securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities.
We
will periodically file statements with the applicable debenture
trustee regarding our compliance with specified covenants in the
applicable indenture.
Modification
of Indenture; Waiver
The
debenture trustee and we may change the applicable indenture
without the consent of any holders with respect to specific
matters, including:
| ● |
to fix any ambiguity, defect or inconsistency in the indenture; and |
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| ● |
to change anything that does not materially adversely affect the interests of any holder of debt securities of any series issued pursuant to such indenture. |
In
addition, under the indentures, the rights of holders of a series
of debt securities may be changed by us and the debenture trustee
with the written consent of the holders of at least a majority in
aggregate principal amount of the outstanding debt securities of
each series (or, at a meeting of holders of such series at which a
quorum is present, the holders of a majority in principal amount of
the debt securities of such series represented at such meeting)
that is affected. However, the debenture trustee and we may make
the following changes only with the consent of each holder of any
outstanding debt securities affected:
| ● |
extending the fixed maturity of the series of debt securities; |
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reducing the principal amount, reducing the rate of or extending the time of payment of interest, or any premium payable upon the redemption of any debt securities; |
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reducing the principal amount of discount securities payable upon acceleration of maturity; |
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making the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security; or |
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reducing the percentage of debt securities, the holders of which are required to consent to any amendment or waiver. |
Except
for certain specified provisions, the holders of at least a
majority in principal amount of the outstanding debt securities of
any series (or, at a meeting of holders of such series at which a
quorum is present, the holders of a majority in principal amount of
the debt securities of such series represented at such meeting) may
on behalf of the holders of all debt securities of that series
waive our compliance with provisions of the indenture. The holders
of a majority in principal amount of the outstanding debt
securities of any series may on behalf of the holders of all the
debt securities of such series waive any past default under the
indenture with respect to that series and its consequences, except
a default in the payment of the principal of, premium or any
interest on any debt security of that series or in respect of a
covenant or provision, which cannot be modified or amended without
the consent of the holder of each outstanding debt security of the
series affected; provided, however, that the holders of a majority
in principal amount of the outstanding debt securities of any
series may rescind an acceleration and its consequences, including
any related payment default that resulted from the
acceleration.
Discharge
Each
indenture provides that we can elect to be discharged from our
obligations with respect to one or more series of debt securities,
except for obligations to:
| ● | register the transfer or exchange of debt securities of the series; |
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| ● | replace stolen, lost or mutilated debt securities of the series; |
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| ● | maintain paying agencies; |
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| ● | hold monies for payment in trust; |
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| ● | compensate and indemnify the trustee; and |
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| ● | appoint any successor trustee. |
In
order to exercise our rights to be discharged with respect to a
series, we must deposit with the trustee money or government
obligations sufficient to pay all the principal of, the premium, if
any, and interest on, the debt securities of the series on the
dates payments are due.
Form,
Exchange, and Transfer
We
will issue the debt securities of each series only in fully
registered form without coupons and, unless we otherwise specify in
the applicable prospectus supplement, in denominations of $1,000
and any integral multiple thereof. The indentures provide that we
may issue debt securities of a series in temporary or permanent
global form and as book-entry securities that will be deposited
with, or on behalf of, The Depository Trust Company or another
depositary named by us and identified in a prospectus supplement
with respect to that series.
At
the option of the holder, subject to the terms of the indentures
and the limitations applicable to global securities described in
the applicable prospectus supplement, the holder of the debt
securities of any series can exchange the debt securities for other
debt securities of the same series, in any authorized denomination
and of like tenor and aggregate principal amount.
Subject
to the terms of the indentures and the limitations applicable to
global securities set forth in the applicable prospectus
supplement, holders of the debt securities may present the debt
securities for exchange or for registration of transfer, duly
endorsed or with the form of transfer endorsed thereon duly
executed if so required by us or the security registrar, at the
office of the security registrar or at the office of any transfer
agent designated by us for this purpose. Unless otherwise provided
in the debt securities that the holder presents for transfer or
exchange or in the applicable indenture, we will make no service
charge for any registration of transfer or exchange, but we may
require payment of any taxes or other governmental
charges.
We
will name in the applicable prospectus supplement the security
registrar, and any transfer agent in addition to the security
registrar, that we initially designate for any debt securities. We
may at any time designate additional transfer agents or rescind the
designation of any transfer agent or approve a change in the office
through which any transfer agent acts, except that we will be
required to maintain a transfer agent in each place of payment for
the debt securities of each series.
If we
elect to redeem the debt securities of any series, we will not be
required to:
| ● |
issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or |
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| ● |
register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part. |
Information
Concerning the Debenture Trustee
The
debenture trustee, other than during the occurrence and continuance
of an event of default under the applicable indenture, undertakes
to perform only those duties as are specifically set forth in the
applicable indenture. Upon an event of default under an indenture,
the debenture trustee under such indenture must use the same degree
of care as a prudent person would exercise or use in the conduct of
his or her own affairs. Subject to this provision, the debenture
trustee is under no obligation to exercise any of the powers given
it by the indentures at the request of any holder of debt
securities unless it is offered reasonable security and indemnity
against the costs, expenses and liabilities that it might
incur.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we
will make payment of the interest on any debt securities on any
interest payment date to the person in whose name the debt
securities, or one or more predecessor securities, are registered
at the close of business on the regular record date for the
interest.
We
will pay principal of and any premium and interest on the debt
securities of a particular series at the office of the paying
agents designated by us, except that unless we otherwise indicate
in the applicable prospectus supplement, we will make interest
payments by check which we will mail to the holder. Unless we
otherwise indicate in a prospectus supplement, we will designate
the corporate trust office of the debenture trustee in the City of
New York as our sole paying agent for payments with respect to debt
securities of each series. We will name in the applicable
prospectus supplement any other paying agents that we initially
designate for the debt securities of a particular series. We will
maintain a paying agent in each place of payment for the debt
securities of a particular series.
All
money we pay to a paying agent or the debenture trustee for the
payment of the principal of or any premium or interest on any debt
securities which remains unclaimed at the end of two years after
such principal, premium or interest has become due and payable will
be repaid to us, and the holder of the security thereafter may look
only to us for payment thereof.
Governing
Law
The
indentures and the debt securities will be governed by and
construed in accordance with the laws of the State of New York,
except to the extent that the Trust Indenture Act is
applicable.
Subordination
of Subordinated Debt Securities
Our
obligations pursuant to any subordinated debt securities will be
unsecured and will be subordinate and junior in priority of payment
to certain of our other indebtedness to the extent described in a
prospectus supplement. The subordinated indenture does not limit
the amount of senior indebtedness we may incur. It also does not
limit us from issuing any other secured or unsecured
debt.
DESCRIPTION OF RIGHTS
General
We
may issue rights to our stockholders to purchase shares of our
common stock, preferred stock or the other securities described in
this prospectus. We may offer rights separately or together with
one or more additional rights, debt securities, preferred stock,
common stock or warrants, or any combination of those securities in
the form of units, as described in the applicable prospectus
supplement. Each series of rights will be issued under a separate
rights agreement to be entered into between us and a bank or trust
company, as rights agent. The rights agent will act solely as our
agent in connection with the certificates relating to the rights of
the series of certificates and will not assume any obligation or
relationship of agency or trust for or with any holders of rights
certificates or beneficial owners of rights. The following
description sets forth certain general terms and provisions of the
rights to which any prospectus supplement may relate. The
particular terms of the rights to which any prospectus supplement
may relate and the extent, if any, to which the general provisions
may apply to the rights so offered will be described in the
applicable prospectus supplement. To the extent that any particular
terms of the rights, rights agreement or rights certificates
described in a prospectus supplement differ from any of the terms
described below, then the terms described below will be deemed to
have been superseded by that prospectus supplement. We encourage
you to read the applicable rights agreement and rights certificate
for additional information before you decide whether to purchase
any of our rights.
We
will provide in a prospectus supplement the following terms of the
rights being issued:
| ● |
the date of determining the stockholders entitled to the rights distribution; |
|
| ● |
the aggregate number of shares of common stock, preferred stock or other securities purchasable upon exercise of the rights; |
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| ● |
the exercise price; |
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| ● |
the aggregate number of rights issued; |
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| ● |
whether the rights are transferrable and the date, if any, on and after which the rights may be separately transferred; |
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the date on which the right to exercise the rights will commence, and the date on which the right to exercise the rights will expire; |
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the method by which holders of rights will be entitled to exercise; |
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the conditions to the completion of the offering, if any; |
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the withdrawal, termination and cancellation rights, if any; |
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whether there are any backstop or standby purchaser or purchasers and the terms of their commitment, if any; |
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whether stockholders are entitled to oversubscription rights, if any; |
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| ● |
any applicable material U.S. federal income tax considerations; and |
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| ● |
any other terms of the rights, including terms, procedures and limitations relating to the distribution, exchange and exercise of the rights, as applicable. |
Each
right will entitle the holder of rights to purchase for cash the
principal amount of shares of common stock, preferred stock or
other securities at the exercise price provided in the applicable
prospectus supplement. Rights may be exercised at any time up to
the close of business on the expiration date for the rights
provided in the applicable prospectus supplement.
Holders
may exercise rights as described in the applicable prospectus
supplement. Upon receipt of payment and the rights certificate
properly completed and duly executed at the corporate trust office
of the rights agent or any other office indicated in the prospectus
supplement, we will, as soon as practicable, forward the shares of
common stock, preferred stock or other securities, as applicable,
purchasable upon exercise of the rights. If less than all of the
rights issued in any rights offering are exercised, we may offer
any unsubscribed securities directly to persons other than
stockholders, to or through agents, underwriters or dealers or
through a combination of such methods, including pursuant to
standby arrangements, as described in the applicable prospectus
supplement.
Rights
Agent
The
rights agent for any rights we offer will be set forth in the
applicable prospectus supplement.
DESCRIPTION OF UNITS
The
following description, together with the additional information
that we include in any applicable prospectus supplements summarizes
the material terms and provisions of the units that we may offer
under this prospectus. While the terms we have summarized below
will apply generally to any units that we may offer under this
prospectus, we will describe the particular terms of any series of
units in more detail in the applicable prospectus supplement. The
terms of any units offered under a prospectus supplement may differ
from the terms described below.
We
will incorporate by reference from reports that we file with the
SEC, the form of unit agreement that describes the terms of the
series of units we are offering, and any supplemental agreements,
before the issuance of the related series of units. The following
summaries of material terms and provisions of the units are subject
to, and qualified in their entirety by reference to, all the
provisions of the unit agreement and any supplemental agreements
applicable to a particular series of units. We urge you to read the
applicable prospectus supplements related to the particular series
of units that we may offer under this prospectus, as well as any
related free writing prospectuses and the complete unit agreement
and any supplemental agreements that contain the terms of the
units.
General
We
may issue units consisting of common stock, preferred stock, one or
more debt securities, warrants, rights for the purchase of common
stock, preferred stock and/or debt securities in one or more
series, in any combination. Each unit will be issued so that the
holder of the unit is also the holder of each security included in
the unit. Thus, the holder of a unit will have the rights and
obligations of a holder of each security included in the unit. The
unit agreement under which a unit is issued may provide that the
securities included in the unit may not be held or transferred
separately, at any time or at any time before a specified
date.
We
will describe in the applicable prospectus supplement the terms of
the series of units being offered, including:
| ● |
the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; |
|
| ● |
any provisions of the governing unit agreement that differ from those described below; and |
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| ● |
any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units. |
The
provisions described in this section, as well as those set forth in
any prospectus supplement or as described under “Description of
Common Stock,” “Description of Preferred Stock,” “Description of
Debt Securities,” “Description of Warrants” and “Description of
Rights” will apply to each unit, as applicable, and to any common
stock, preferred stock, debt security, warrant or right included in
each unit, as applicable.
Unit
Agent
The
name and address of the unit agent for any units we offer will be
set forth in the applicable prospectus supplement.
Issuance
in Series
We
may issue units in such amounts and in such numerous distinct
series as we determine.
Enforceability
of Rights by Holders of Units
Each
unit agent will act solely as our agent under the applicable unit
agreement and will not assume any obligation or relationship of
agency or trust with any holder of any unit. A single bank or trust
company may act as unit agent for more than one series of units. A
unit agent will have no duty or responsibility in case of any
default by us under the applicable unit agreement or unit,
including any duty or responsibility to initiate any proceedings at
law or otherwise, or to make any demand upon us. Any holder of a
unit may, without the consent of the related unit agent or the
holder of any other unit, enforce by appropriate legal action its
rights as holder under any security included in the
unit.
CERTAIN
PROVISIONS OF DELAWARE LAW AND OF THE COMPANY’S CERTIFICATE OF
INCORPORATION AND BYLAWS
Anti-Takeover
Provisions
Delaware Law
We
are subject to the anti-takeover provisions of Section 203 of the
Delaware General Corporation Law, or DGCL. Section 203 prohibits a
publicly-held Delaware corporation from engaging in a “business
combination” with an “interested stockholder” for a period of three
years after the date of the transaction in which the person became
an interested stockholder, unless the business combination is, or
the transaction in which the person became an interested
stockholder was, approved in a prescribed manner or another
prescribed exception applies. For purposes of Section 203, a
“business combination” is defined broadly to include a merger,
asset sale or other transaction resulting in a financial benefit to
the interested stockholder, and, subject to certain exceptions, an
“interested stockholder” is a person who, together with his or her
affiliates and associates, owns, or within three years prior, did
own, 15% or more of the corporation’s voting stock.
Staggered Board
Our
restated certificate of incorporation and restated by-laws provide
for the Board of Directors to be divided into three classes serving
staggered terms. At each annual meeting of stockholders, directors
elected to succeed those directors whose terms expire are elected
for a three-year term of office. All directors elected to our
classified Board of Directors will serve until the election and
qualification of their respective successors or their earlier
resignation or removal. The Board of Directors is authorized to
create new directorships and to fill such positions so created and
is permitted to specify the class to which any such new position is
assigned. The person filling such position would serve for the term
applicable to that class. The Board of Directors (or its remaining
members, even if less than a quorum) is also empowered to fill
vacancies on the Board of Directors occurring for any reason for
the remainder of the term of the class of directors in which the
vacancy occurred. Members of the Board of Directors may only be
removed for cause and only by the affirmative vote of 80% of the
outstanding voting stock. These provisions are likely to increase
the time required for stockholders to change the composition of the
Board of Directors. For example, in general, at least two annual
meetings will be necessary for stockholders to effect a change in a
majority of the members of the Board of Directors. The provision
for a classified board could prevent a party who acquires control
of a majority of our outstanding common stock from obtaining
control of our Board of Directors until our second annual
stockholders meeting following the date the acquirer obtains the
controlling stock interest. The classified board provision could
have the effect of discouraging a potential acquirer from making a
tender offer or otherwise attempting to obtain control of us and
could increase the likelihood that incumbent directors will retain
their positions.
Advance notice provisions for stockholder
proposals
Our
restated by-laws establish an advance notice procedure for
stockholder nominations of candidates for election to our Board of
Directors, as well as procedures for including proposed nominations
at special meetings at which directors are to be elected.
Stockholders at our annual meeting may only consider proposals or
nominations specified in the notice of meeting or brought before
the meeting by or at the direction of our board or by a stockholder
who was a stockholder of record on the record date for the meeting,
who is entitled to vote at the meeting and who has given to our
secretary timely written notice, in proper form, of the
stockholder’s intention to bring that business before the meeting,
and who has complied with the procedures and requirements set forth
in the by-laws. Although the by-laws do not give the Board of
Directors the power to approve or disapprove stockholder
nominations of candidates or proposals regarding other business to
be conducted at a special or annual meeting, these by-laws may have
the effect of precluding the conduct of some business at a meeting
if the proper procedures are not followed or may discourage or
defer a potential acquirer from conducting a solicitation of
proxies to elect its own slate of directors or otherwise attempting
to obtain control of Microbot.
Special meetings of stockholders
Special
meetings of the stockholders may be called only by the Board of
Directors, president or secretary upon the application of a
majority of the directors. Stockholders are not permitted to call a
special meeting or to require our Board of Directors to call a
special meeting.
No stockholder action by written consent
Our
restated certificate of incorporation and restated by-laws do not
permit our stockholders to act by written consent. As a result, any
action to be effected by our stockholders must be effected at a
duly called annual or special meeting of the
stockholders.
Super-majority stockholder vote required for certain
actions.
The
DGCL provides generally that the affirmative vote of a majority of
the shares entitled to vote on any matter is required to amend a
corporation’s certificate of incorporation or by-laws, unless the
corporation’s certificate of incorporation or by-laws, as the case
may be, requires a greater percentage. Our restated certificate of
incorporation requires the affirmative vote of the holders of at
least 80% of our outstanding voting stock to amend or repeal
certain provisions of our restated certificate of incorporation.
This 80% stockholder vote would be in addition to any separate
class vote that might in the future be required pursuant to the
terms of any preferred stock that might then be outstanding. In
addition, an 80% vote is also required for any amendment to, or
repeal of, our restated by-laws by the stockholders. Our restated
by-laws may be amended or repealed by a vote of a majority of the
total number of authorized directors.
Limitation
of Liability and Indemnification
Our
restated certificate of incorporation and our amended and restated
bylaws provide that each person who was or is made a party or is
threatened to be made a party to or is otherwise involved
(including, without limitation, as a witness) in any action, suit
or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was one
of our directors or officers or is or was serving at our request as
a director, officer, or trustee of another corporation, or of a
partnership, joint venture, trust or other enterprise, including
service with respect to an employee benefit plan, whether the basis
of such proceeding is alleged action in an official capacity as a
director, officer or trustee or in any other capacity while serving
as a director, officer or trustee, shall be indemnified and held
harmless by us to the fullest extent authorized by the DGCL against
all expense, liability and loss (including attorneys’ fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid
in settlement) reasonably incurred or suffered by such.
Section
145 of the DGCL permits a corporation to indemnify any director or
officer of the corporation against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with any action, suit or
proceeding brought by reason of the fact that such person is or was
a director or officer of the corporation, if such person acted in
good faith and in a manner that he or she reasonably believed to be
in, or not opposed to, the best interests of the corporation, and,
with respect to any criminal action or proceeding, if he or she had
no reasonable cause to believe his or her conduct was unlawful. In
a derivative action (i.e., one brought by or on behalf of the
corporation), indemnification may be provided only for expenses
actually and reasonably incurred by any director or officer in
connection with the defense or settlement of such an action or suit
if such person acted in good faith and in a manner that he or she
reasonably believed to be in, or not opposed to, the best interests
of the corporation, except that no indemnification shall be
provided if such person shall have been adjudged to be liable to
the corporation, unless and only to the extent that the Delaware
Chancery Court or the court in which the action or suit was brought
shall determine that such person is fairly and reasonably entitled
to indemnity for such expenses despite such adjudication of
liability.
Pursuant
to Section 102(b)(7) of the DGCL, Article Ninth of our restated
certificate of incorporation eliminates the liability of a director
to us or our stockholders for monetary damages for such a breach of
fiduciary duty as a director, except for liabilities
arising:
| ● | from any breach of the director’s duty of loyalty to us or our stockholders; |
| ● | from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; |
|
| ● | under Section 174 of the DGCL; and |
|
| ● | from any transaction from which the director derived an improper personal benefit. |
We
have entered into indemnification agreements with our directors and
certain officers, in addition to the indemnification provided in
our restated certificate of incorporation and our amended and
restated bylaws, and intend to enter into indemnification
agreements with any new directors and executive officers in the
future. We have purchased and intend to maintain insurance on
behalf of any person who is or was a director or officer against
any loss arising from any claim asserted against him or her and
incurred by him or her in any such capacity, subject to certain
exclusions.
The
foregoing discussion of our restated certificate of incorporation,
amended and restated bylaws, indemnification agreements, indemnity
agreement, and Delaware law is not intended to be exhaustive and is
qualified in its entirety by such restated certificate of
incorporation, amended and restated bylaws, indemnification
agreements, indemnity agreement, or law.
LEGAL MATTERS
The
validity of the shares being offered under this prospectus by us
will be passed upon for us by Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C., Boston, Massachusetts.
EXPERTS
The
consolidated financial statements of Microbot Medical Inc.
appearing it its Annual Report on Form 10-K for the year ended
December 31, 2019, have been audited by Brightman Almagor Zohar & Co., a firm
in the Deloitte Global Network, independent registered
public accounting firm, as set forth in their report thereon,
including therein, and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by
reference in reliance upon such report given on the authority of
such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE
INFORMATION
We
are subject to the reporting requirements of the Exchange Act and
file annual, quarterly and current reports, proxy statements and
other information with the SEC. SEC filings are available at the
SEC’s website at http://www.sec.gov.
This
prospectus is only part of a registration statement on Form S-3
that we have filed with the SEC under the Securities Act and
therefore omits certain information contained in the registration
statement. We have also filed exhibits and schedules with the
registration statement that are excluded from this prospectus, and
you should refer to the applicable exhibit or schedule for a
complete description of any statement referring to any contract or
other document.
The
registration statement and the documents referred to below under
“Incorporation of Certain Information by Reference” are also
available on our website at http://www.microbotmedical.com. We have
not incorporated by reference into this prospectus the information
on our website, and you should not consider it to be a part of this
prospectus.
INCORPORATION OF DOCUMENTS BY
REFERENCE
The
SEC allows us to “incorporate by reference” information that we
file with them. Incorporation by reference allows us to disclose
important information to you by referring you to those other
documents. The information incorporated by reference is an
important part of this prospectus, and information that we file
later with the SEC will automatically update and supersede this
information. We filed a registration statement on Form S-3 under
the Securities Act with the SEC with respect to the securities we
may offer pursuant to this prospectus. This prospectus omits
certain information contained in the registration statement, as
permitted by the SEC. You should refer to the registration
statement, including the exhibits, for further information about us
and the securities we may offer pursuant to this prospectus.
Statements in this prospectus regarding the provisions of certain
documents filed with, or incorporated by reference in, the
registration statement are not necessarily complete and each
statement is qualified in all respects by that reference. Copies of
all or any part of the registration statement, including the
documents incorporated by reference or the exhibits, are available
at the SEC’s website at http://www.sec.gov. The documents we are
incorporating by reference are:
| ● |
our Annual Report on Form 10-K for the year ended December 31, 2019 filed with the SEC on April 14, 2020 and Amendment No. 1 to our Annual Report on Form 10-K for the year ended December 31, 2019 filed on April 29, 2020; |
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| ● |
our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2020, June 30, 2020 and September 30, 2020 that we filed with the SEC on May 15, 2020, August 14, 2020 and November 16, 2020. |
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| ● |
our Current Reports on Form 8-K, filed with the SEC (except for the information furnished under Items 2.02 or 7.01 and the exhibits furnished thereto) on: February 25, 2020, February 28, 2020, March 3, 2020, April 1, 2020, May 7, 2020, June 19, 2020, August 3, 2020 and September 4, 2020; |
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| ● |
the description of our common stock contained in our registration statement on Form 8-A filed August 3, 1998, under the Exchange Act, including any amendment or report filed for the purpose of updating such description; and |
|
| ● |
all reports and other documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this prospectus and prior to the termination of this offering. |
The
SEC file number for each of the documents listed above is
000-19871
In
addition, all reports and other documents filed by us pursuant to
the Exchange Act after the date of the initial registration
statement and prior to effectiveness of the registration statement
shall be deemed to be incorporated by reference into this
prospectus.
Any
statement contained in this prospectus or in a document
incorporated or deemed to be incorporated by reference into this
prospectus will be deemed to be modified or superseded for purposes
of this prospectus to the extent that a statement contained in this
prospectus or any other subsequently filed document that is deemed
to be incorporated by reference into this prospectus modifies or
supersedes the statement. Any statement so modified or superseded
will not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
We
will provide, upon written or oral request, without charge to each
person, including any beneficial owner, to whom a copy of this
prospectus is delivered, a copy of any or all of the information
incorporated herein by reference (exclusive of exhibits to such
documents unless such exhibits are specifically incorporated by
reference herein). You may request a copy of any or all of these
filings, at no cost, by writing or telephoning us at: Microbot
Medical Inc., 25 Recreation Park Drive, Unit 108, Hingham, MA
02043; Attention: Harel Gadot; telephone number (908)
938-5561.
You
should rely only on information contained in, or incorporated by
reference into, this prospectus and any prospectus supplement. We
have not authorized anyone to provide you with information
different from that contained in this prospectus or incorporated by
reference in this prospectus. We are not making offers to sell the
securities in any jurisdiction in which such an offer or
solicitation is not authorized or in which the person making such
offer or solicitation is not qualified to do so or to anyone to
whom it is unlawful to make such offer or solicitation.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth the various expenses in connection with
the sale and distribution of the securities being registered, all
of which are being borne by us.
| Securities and Exchange Commission registration fee |
$ | 8,182.50 | ||
| Printing and engraving expenses |
* | |||
| Legal fees and expenses |
* | |||
| Accounting fees and expenses |
* | |||
| Blue sky fees and expenses |
* | |||
| Transfer Agent and Registrar fees |
* | |||
| Trust fees and expenses |
* | |||
| Miscellaneous | * | |||
| Total | * |
| * |
The amount of securities and number of offerings are indeterminable and cannot be estimated at this time. |
Item
15. Indemnification of Directors and Officers.
Section
145 of the DGCL provides that a corporation has the power to
indemnify a director, officer, employee, or agent of the
corporation, or a person serving at the request of the corporation
for another corporation, partnership, joint venture, trust or other
enterprise in related capacities against expenses, including
attorneys’ fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with
an action, suit or proceeding to which he was or is a party or is
threatened to be made a party to any threatened, ending or
completed action, suit or proceeding by reason of such position, if
such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and, in any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, except that,
in the case of actions brought by or in the right of the
corporation, no indemnification shall be made with respect to any
claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or other adjudicating court
determines that, despite the adjudication of liability but in view
of all of the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
Section
102 of the DGCL, permits a corporation to eliminate the personal
liability of directors of a corporation to the corporation or its
stockholders for monetary damages for a breach of fiduciary duty as
a director, except where the director breached his duty of loyalty,
failed to act in good faith, engaged in intentional misconduct or
knowingly violated a law, authorized the payment of a dividend or
approved a stock repurchase in violation of Delaware corporate law
or obtained an improper personal benefit.
The
foregoing discussion of indemnification merely summarizes certain
aspects of indemnification provisions of, and is limited by
reference to, the above discussed sections of the DGCL.
The
Company’s restated certificate of incorporation provides that the
Company’s Directors shall not be liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a
director except to the extent that exculpation from liabilities is
not permitted under the DGCL as in effect at the time such
liability is determined. The Company’s restated certificate of
incorporation further provides that the Company shall indemnify its
directors and officers to the fullest extent permitted by the
DGCL.
We
maintain a directors’ and officers’ insurance policy pursuant to
which our directors and officers are insured against liability for
actions taken in their capacities as directors and officers. We
believe that these indemnification provisions and insurance are
necessary to attract and retain qualified directors and
officers.
Indemnification
Agreements
We
have entered into indemnification agreements with each of our
directors and officers. These indemnification agreements may
require us, among other things, to indemnify our directors and
officers for some expenses, including attorneys’ fees, judgments,
fines and settlement amounts incurred by a director or officer in
any action or proceeding arising out of his or her service as one
of our directors or officers, or any of our subsidiaries or any
other company or enterprise to which the person provides services
at our request.
Item
16. Exhibits.
The
exhibits to this registration statement are listed in the Exhibit
Index to this registration statement, which Exhibit Index is hereby
incorporated by reference.
Item
17. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration
statement:
(i)
To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the effective
registration statement; and
(iii)
To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement; provided, however, that paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the
information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished
to the Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3)
To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities
Act of 1933 to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the
registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by section 10(a) of the Securities Act of 1933
shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which
that prospectus relates, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective
date.
(5)
That, for the purpose of determining liability of the registrant
under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, in a primary offering of securities
of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or sold
to such purchaser by means of any of the following communications,
the undersigned registrant will be a seller to the purchaser and
will be considered to offer or sell such securities to such
purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or
on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser.
(b)
That, for purposes of determining any liability under the
Securities Act:
(i)
the information omitted from the form of prospectus filed as part
of the registration statement in reliance upon Rule 430A and
contained in the form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of the registration statement as of
the time it was declared effective; and
(ii)
each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(c)
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to section 13(a)
or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(d)
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by
a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(e)
The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act
(“Act”) in accordance with the rules and regulations prescribed by
the Commission under section 305(b)(2) of the Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Hingham,
State of Massachusetts, on the 25th day of November,
2020.
|
MICROBOT MEDICAL INC. |
||
| By: |
/s/ Harel Gadot |
|
| Harel Gadot |
||
| Chairman, President and Chief Executive Officer |
||
SIGNATURES AND POWER OF
ATTORNEY
Each
person whose signature appears below hereby constitutes and
appoints Harel Gadot and David Ben Naim, and each of them singly,
his or her true and lawful attorneys-in-fact and agent with full
power of substitution and resubstitution, for him or her and in his
or her name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to
this Registration Statement on Form S-3 and any related Rule 462(b)
registration statement or amendment thereto and to file the same,
with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents full power and authority to
be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or their
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the
capacities and on the dates indicated.
| Signature | Title | Date | ||
|
/s/ Harel Gadot |
Chairman, President and Chief Executive Officer |
November 25, 2020 |
||
|
Harel Gadot |
(Principal Executive Officer) |
|||
|
/s/ David Ben Naim |
Chief Financial Officer |
November 25, 2020 |
||
|
David Ben Naim |
(Principal Financial and Accounting Officer) |
|||
|
/s/ Tal Wenderow |
Director | November 25, 2020 |
||
|
Tal Wenderow |
||||
|
/s/ Yoseph Bornstein |
Director | November 25, 2020 |
||
|
Yoseph Bornstein |
||||
|
/s/ Prattipati Laxminarain |
Director | November 25, 2020 |
||
|
Prattipati Laxminarain |
||||
|
/s/ Scott Burell |
Director | November 25, 2020 |
||
|
Scott Burell |
||||
|
/s/ Martin Madden |
Director | November 25, 2020 |
||
|
Martin Madden |
||||
|
/s/ Aileen Stockburger |
Director | November 25, 2020 |
||
|
Aileen Stockburger |
EXHIBIT
INDEX
| Exhibit | Description | |
| 1.1* |
Form of underwriting agreement |
|
| 3.1 |
Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 of the Registrant’s Annual Report on Form 10-K, filed on March 15, 2007) |
|
| 3.2 |
Certificate of Amendment to the Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 of Current Report on Form 8-K, filed on November 29, 2016) |
|
| 3.3 |
Certificate of Amendment to the Restated Certificate of Incorporation (incorporated by reference to the Company’s Current Report on Form 8-K filed on September 4, 2018). |
|
| 3.4 |
Certificate of Amendment to the Restated Certificate of Incorporation (incorporated by reference to the Company’s Current Report on Form 8-K filed on September 11, 2019). |
|
| 3.5 |
Amended and Restated By-Laws of the Company (incorporated by reference to the Company’s Current Report on Form 8-K filed on May 3, 2016). |
|
| 4.1* |
Form of Common Stock Warrant Agreement and Warrant Certificate |
|
| 4.2* |
Form of Preferred Stock Warrant Agreement and Warrant Certificate |
|
| 4.3* |
Form of Debt Securities Warrant Agreement and Warrant Certificate |
|
| 4.4** |
Form of Senior Indenture |
|
| 4.5** |
Form of Subordinated Indenture |
|
| 4.6* |
Form of Rights Agreement and Right Certificate |
|
| 4.7* |
Form of Unit Agreement and Unit |
|
| 5.1** |
Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. |
|
| 23.1** |
Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in Exhibit 5.1) |
|
| 23.2** |
Consent of Brightman Almagor Zohar & Co., a firm in the Deloitte Global Network |
|
| 24.1 |
Power of attorney—included on the signature page |
|
| 25.1*** |
Statement of Eligibility of Trustee Under Debt Indenture |
| * |
To be filed, if necessary, subsequent to the effectiveness of this registration statement by an amendment to this registration statement or incorporated by reference pursuant to a Current Report on Form 8-K in connection with an offering of securities. |
| ** | Filed herewith. |
| *** | To be filed separately pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939. |
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